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EU software patent directive postponed again

Consideration of the ever-contentious issue of software patents by the EU has …

Once again, Poland has stopped implementation of the European Union's directive on software patents. In early December, an attempt to approve the directive was stopped when Poland withdrew its support for the idea and the group of countries in favor of the issue lost their majority on the Council considering it. Poland's move means that consideration will be delayed for at least another week as the parties in favor of and opposed to the move continue their behind-the-scenes maneuvering.

The directive in question would mean the adoption in the European Union of a software patent system similar to the one extant in the US, and has been a contentious issue since it was first raised. Proponents of the directive assert that it is necessary to protect their innovations from being exploited by competitors. Opponents counter that software patents stifle innovation and make it more difficult for smaller companies to compete with larger ones. In addition, there is the fear that going down that patent road will lead to increased litigations, as companies use portfolios of patents to battle one another.

It is common perception that the United States is the home of intellectual property law, but that isn't exactly true. Historically speaking, Europe has been far more rewarding to its creative authors. For example, the European Berne Convention (alternatively, Berne Union) of 1886 established a uniform copyright code between certain European nations, and that convention had been revised in 1908 to extend copyright protection for the life of the author plus an additional 50 years. The convention came to be administered by the World Intellectual Property Organization in 1967, but the United States did not formally enter the convention until 1989, and it spent a number of years legislating itself to be up to date with European laws. Copyright enjoys more author privilege in Europe than it does in the US, although that landscape may change thanks to the DMCA.

Patent law is certainly more complex. The US and Europe in general have granted "software patents" since the 1980s, although the European practice has been more reserved. Article 52 of the European Patent Convention excludes the patentability of computer programs, nevertheless patents have been granted in certain legal disputes. Indeed, both in the US and in Europe, it has been the creation of special legal venues of arbitration that has opened the gates for some software patents, and in the case of Europe, spurred a movement to regulate and actually try and set up some new definitions and guidelines for software patents. The takeaway point here is that both the United States and some European countries do already grant what are, in effect, software patents. The purpose of this directive is to harmonize European law, and make it generally easier to obtain software patents. It is not, however, to introduce patents where there previously were none, nor is it to necessarily harmonize with US law on the matter (for instance, the Directive will not allow for the patenting of business methods).

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman